The Volokh Conspiracy

I have a head cold, so this may not be entirely lucid, but hopefully the point will be adequately transmitted...

I don't know, of course, but perhaps it's because Scalia rejects substantive due process and Rehnquist (to my knowledge) never really did. Scalia is clearly more of an iconoclast than Rehnquist (which is precisely why he inspires such strong reactions, both for him and against him), but as I discussed the other day on Althouse, and earlier today here, Scalia doesn't just challenge the sort of outcomes that Biden wants, Scalia's judicial philosophy challenges the entire underlying legitimacy of the process at which those outcomes are reached.

What's struck me as odd is that the Dems on the committee have questioned and judged seemingly on nothing other than outcomes. The idea that process matters more than outcome is seemingly alien to them, and thus no doubt seems extraordinarily radical to them - not to mention extremely dangerous, because the process Scalia advocates would cut them off on a number of fronts.

So if they're talking about a nominee who they simply disagree with on the outcomes, they can simply say "well, we want a judge who FEELS differently, who reaches other outcomes", but when you're talking about Scalia, you're talking about someone who rejects the entire premise that what kind of outcomes a judge wants is relevant.

I hope that made some sort of sense...It seemed a coherent thought when I started. ;)

As a paleoliberal, it pains me to say that (1) Biden would be an even worse candidate than Kerry and (2) these gasbags have learned nothing since they let Clarence Thomas off the hook by asking him nothing substantive and overly sanitizing their rare prime time appearance 14 years ago. Rehnquist pretended to care about the process as he reached the same conclusions as Scalia, which seems to have fooled Biden.

Scalia is flat out evil to many.

Something that I continue to regard as utterly preposterous, and evidence that the vast majority of non-legal people (I mean, the Kossacks and their ilk, not people like Ronald Dworkin who have actual and cognizable philosophical differences with him) who disagree with Scalia simply know nothing about his jurisprudence. They are people like Joe Biden who are only concerned with results, not how those results are reached; people who believe the Federal government either has, or should have, plenary powers. Which is precisely why Scalia is so profoundly dangerous to liberals, and must therefore be demonized, because if the public at large stopped believing - even tacitly - in this result-oriented view of the courts, liberals and conservatives alike would have to win elections to push their agenda, rather than doing it through the courts.

His dissent in Lawrence is simply odious.

It is only natural that he is disliked by many pro-rights groups.

All this debate needs to be geared to what exactly the role/function/purpose is of the Supreme Court.

To me it seems clear that it is to interpret the meaning of the Constitution and apply that. Outside of common law, the Judicial branch should not be making or changing the law. I am no fundamentalist and know its going to happen a little, but the Judicial branch is just way over abusing their authority.

If the Judges were held to their oath to uphold the Constitution, then it would not matter very much if they were liberal or conservative....professionalism would be the appropriate issue.

I had the same reaction to Biden's odd differentiation, and I did immediately attribute it to the Chief's recent death. First they canonize O'Connor, and now the Chief. It's all politics. Biden knows most people's sympathies are with the Chief and his family (Dershowitz being a notable exception), and so Biden panders.

Professor Volokh, you might consider a post/thread on whether a lawyer violates the obligation to promote public confidence in the legal system by saying things like "Justice xx is evil," and also whether that ethical canon, if so applied, would violate the 1st Amendment.

Scalia has a few prominent non-conservative decisions, but in the overall count, he is clearly more conservative than Rehnquist has been.

Stephen:

He does not believe that the Constitution should be interpreted as an evolving document.

No he doesn't, and neither do quite a substantial of other very smart people, starting with the founding generation. Jefferson, for example, is widely reported to suggest the need for a new constitution every thirty years, toaccomodate the changing needs of the people. If you think the constitution's meaning should change with society, why would there be any need? In any instance, I don't think it should be interpreted as a living document because that would render as a minor aristocracy whichever subgroup is charged with the interpretation of what a document that governs out lives means at any given time. I dont think taht government by platonic guardian is a good idea; your view is evidently different, and I simply disagree. That doesn't mean that I think you're evil, I just think you're wrong. You evidently have a different way of thinking about people who disagree with you.

He would not have voted for Brown v. Board of Education.

Really? Well, I say Scalia would have voted for Brown, and I base that statement on this:

"The customary invocation of Brown as demonstrating the dangerous consequences of this principle is unsupportable. I argue for the role of tradition in giving content only to ambiguous constitutional text; no tradition can supersede the Constitution. In my view, the Fourteenth Amendment's requirement of "equal protection of the laws," combined with the Thirteenth Amendment's abolition of the institution of black slavery, leaves no room for doubt that laws treating people differently because of their race are invalid. Moreover, even if one does not regard the Fourteenth Amendment as crystal clear on this point, a tradition of unchallenged validity did not exist with respect to the practice in Brown. To the contrary, in the 19th century, the principle of "separate-but-equal" had been vigorously opposed on constitutional grounds, litigated up to this Court, and upheld only over the dissent of one of our historically most respected Justices." (Rutan v. Republican Party of Illinois, 497 U.S. 62, 96 n.1) (Scalia, J., dissenting) (Internal citations removed)

So I say you're wrong, and if you say Scalia would have voted against Brown, on what do you base your statement? Likewise:

He would have ruled the Emancipation Proclamation unconstitutional.

Please provide evidence for this statement that is slightly more pursuasive than
"he is evil" or "he is rude". I wrote above that the people who dislike Scalia have no clue about his jurisprudence, and if your intention was to prove the point, I think you're doing a good job so far.

Prof. Cross writes: "Scalia has a few prominent non-conservative decisions, but in the overall count, he is clearly more conservative than Rehnquist has been."

The issue raised by the post is not whether he's more conservative in the results he reaches. The issue is whether he is so much more conservative or radical in result or apprach that it makes sense for Biden to say that a Scalia-esque nominee is disqualified while a Rehnquist-esque nominee is not. The only reasonable answer to that question is no, IMHO.

The emancipation proclamation was in 1863. The 13th Amendment was ratified in December 1865. I guess it depends on how long it took the case to reach Scalia. As for Brown, that's right, I don't believe the man. Neither did Justice Stevens. Of course, in 1990 he is going to say he would have voted for Brown.

As for the role of the Court, I am not going to cure you all of your views on this comments page. In my view, it is an important function of the Court to prevent the minority and the powerless from being unfairly overridden by an intolerant majority or the powerful. I believe that the Constitution generally has the tools with which this can be done and that the idea that there is an objectively correct decision is often nonsense. We thought we knew what the commerce clause meant when I was in law school, but we apparently were wrong. In this sense, Roberts appears to be an improvement over Rehnquist.

Also, if he is on the Court for 30 years, I suspect he will hire an African-American law clerk.

Dear Sirs,

United States Senators, particularly those who hold lifetime sinecures, live in a bubble. Nobody dares to disagree with them. Certainly not anyone who sits in the chair. Certainly not their staff. Their most inane blatherings are treated with great respect by their colleagues and sycophants. This accounts for the incoherent statements by Kerry and most other Senators who run for President.

Regards,
Roy

"Jefferson, for example, is widely reported to suggest the need for a new constitution every thirty years" Jefferson as framer? I thought he was in France.

Gripes with Scalia: 1) Too political or theoretical. Preaches a half-baked theory of originalism, rather than "calling balls and strikes." Be a professor or a politician if you want to propound and defend overarching theories. Otherwise, be traditionally judicial. 2) Insensitive to conflict of interest re Cheney.

At least in Kelo the property owners received a fair market valuation that some unfortunate folks in Texas didn't when they were lowballed by government to pave the way for a new baseball stadium.

I think what Biden doesn't like about Scalia as compared to Rehnquist is Scalia's tendency towards vitriolic bombast in place of legal reasoning. Thomas is a principled originalist. Scalia is an originalist until he doesn't like the result, then originalism is casually tossed aside (e.g. Raich v. Ashcroft, one of many examples). Rehnquist had a due respect for those who disagreed with him - a far cry from Scalia's contempt and disdain for those who disagree with him. If you're going to switch your judicial philosophy from one case to the next to get the result you like, then you're really not in a position to complain all that much that others are doing the same.

Rehnquist was somewhat more liberal than Scalia and Thomas. Consider the analysis of court voting patterns by Lawrence Sirovich. Compare how often justices differed from Ginsburg. O'Connor(.25214), Kennedy(.2671), Rehnquist(.30769), Thomas(.36572) and Scalia(.36966). By this measure Rehnquist was intermediate between "moderate conservatives", O'Connor and Kennedy, and "solid conservatives", Thomas and Scalia. Also of course Rehnquist was less abrasive than Scalia.

I don't think Senator Biden was trying to make a nuanced legal analysis. I think he was trying to satisfy the Democratic base that he was not simply being a rubber stamp ("If I think he's going to be a Justice Scalia ... I vote no.") while leaving himself enough room to vote to confirm Judge Roberts, thereby demonstrating that he's willing to be bipartisan and reach across the aisle.

of course Rehnquist was less abrasive than Scalia.

You say abrasive, I say direct. Some say he's rude, I say he's blunt. I appreciate that in a chap.

While I respect the Sen Biden's comment might come from the man as a lawyer, I think it comes from the man as politician. In other words, put aside the legal reasoning. Justice Scalia has become a bogeyman for anyone left of center.

Yes, some of the reason is the substance of his opinions. To cite the extreme, if his jurispridence matched Justice Ginsberg the left would be fine with him even though he was appointed by the arch enemy (see Justice Stevens, e.g.).

But substance is only part of the equation in politics. One would have to be egregiously vain to think that you could identify all the reasons someone achieves the status that Scalia has, but I think some of the less rational reasons include the tenor of his wiriting, the fact that he seems not to be beholden to an establishment in that his votes can't be easily determined by knowing whose ox will be gored, his looks (yes I know it's superficial but this is politics) . . .

Scalia is simply the guy the left loves to hate and Rhenquist isn't (so much). I hate to spoil the fun, but really, don't over analyze this one.

I think there's another point in drawing an analogy between Roberts and any current members. Even Kennedy's greatest supporter, and I am not one of these, would not call him a leader on the court. However Justice Scalia and Associate Justice Rehnquist were. When he became Chief I felt Rehnquist lost some of his conservative leadership, probably due to the administrative work and the need to be the leader that the public see.

My point is this. Will Roberts be a leader like Scalia or a follower like Kennedy? My original belief was that he will be a Kennedy type who will be reluctant to break new ground and would identify himself not as a conservative but as a middle of the road justice. Suc a character in POTUS eyes will make a great CJ because nothing will be lost in leadership, he can now try and appoint someone who can add to Scalia's leadership and groud-breaking efforts.

If you are looking for groundbreaking legal analysis from Sen. Biden, you may be disappointed. While his blue-collar style seems more suited in the House of Representatives, I guess that is what makes him unique among his senatorial colleagues. To his credit, he articulates his views in a manner that his nonlawyer constitutents can easily understand and digest. For that reason, I have respect for him. In addition, his state has annually saved me hundred of dollars in tax-free shopping so I am reluctant to criticize.

Yes, that was Scalia's argument, and my point was why is there not a single reference to original intent in Scalia's decision, not a single reference to what the framers of the interstate commerce clause or the necessary and proper clause thought, or whether the legislation in Raich would have been considered interstate commerce as that term would have been generally understood at the time of the Constitution's enactment? He selectively employs original intent when it gets the results he likes, and ignores it when, as in this case, it doesn't lead to a result he likes. He's certainly not the only judge on the Supreme Court to do so, but given the vitriol of his decisions when others depart from original intent, it looks worse when he does it.

"I will defend Scalia's result in Raich, even though I don't agree with it. Scalia'as argument was basically that the necessary and proper clause has a wide scope to allow Federal action to regulate the interstate market for drugs. I don't agree with his concurrence, but I don't think that it necessarily deserves the demanding for excommunication that were hurled in Scalia's direction after the judgement was handed down, and I don't think that the result is impossible to justify within the Scalian rubric."

I think you're all putting too much legal thought into this, and not enough political thought.

Scalia and Rehnquist were so similar that there is no objective way to say that Roberts is more like one or the other. They're both more conservative than Biden, or pretty much any other Democrat, would like. Saying "I'd vote for another Rehnquist, but not another Scalia" is just Biden's way of preserving his options. If it looks like Roberts has a chance of being defeated, Biden can claim he's "a Scalia" and vote against him; if it looks like Roberts is going to be confirmed, Biden can label him "a Rehnquist" and vote for him. Either way he gets to be on the winning side, and either way he looks like he carefully studied Roberts' credentials and ideology.

Justice Scalia has become a bogeyman for anyone left of center. Yes, some of the reason is the substance of his opinions. To cite the extreme, if his jurispridence matched Justice Ginsberg the left would be fine with him even though he was appointed by the arch enemy.

I'd go further than that. I think if his jurisprudence matched Justice Ginsberg, the left would not only tolerate but positively EMBRACE Scalia's combatativeness. They would call it "speaking truth to power", and they would love his willingness to cut through the mindless sophistry and say what's on his mind, for exactly the same reasons that many (not all) of us who are fine with his jurisprudence as it stands like his personality. I think the distaste is almost entirely a function of an overinflated caricature of the results he reaches, a caricature promulgated by the same sort of people who will defend Roe to the death without ever having actually READ the opinion of the court, let alone the dissent.

I'm baffled by the note that Scalia's looks may play into the reason the left dislike him. I mean, he's a balding, slightly overweight, Italian-American heading into his 70s; not exactly Adonis, I'll grant you. But then, neither is Michael Moore, neither is Bill Clinton, and I can't think of any of the Democrats current cheerleaders who is. If your pin-up is Howard Dean, either you have a thing for middle-American hockey dads, or you need to ajust your prescription. ;) Granted, I'm in a minority of one insofar as I think that Hillary Clinton has actually become very attractive in middle age, but I doubt that it's her looks that make Democrats willing to forgive her for anything.

Regarding Scalia as a leader, I think Tushnet is right that Scalia's abrasiveness doesn't make him a natural leader on the court, and may even have hindered his ability to carry the results. And that's from someone who LIKES that Scalia is direct and blunt. Prof. David Wagner - someone else who can hardly be sounted as a detractor of Scalia - remarked the other day that:

A student asked me this morning whether I was disappointed that Our Hero didn't get the nod for Chief. No, and for the same reason I never thought he would be chosen. The job doesn't play to his strengths at all. It would pressure him to get "moderate," as it did to Rehnquist; and it comes with a bag of administrative responsibilities that would unacceptably divert him from his mission of explaining the Law and proclaiming the Truth.

While I agree with this, my reasons for wanting Scalia as Chief had everything to do with opinion assignment. As much as I appreciate that Scalia's goal may be more to influence the strategic direction of the court rather than every day decisions - as was Rehnquist's goal, by many accounts - reading his opinions (and dissents, in particular) in the last couple of terms, the frustration at routinely losing cases which should have been no-brainers (Roper seems a prime example) seems palpable, and I think it's negatively affecting his output. I can't help that I'm impatient. ;)

Cornellian:

[M]y point was why is there not a single reference to original intent in Scalia's decision, not a single reference to what the framers of the interstate commerce clause or the necessary and proper clause thought, or whether the legislation in Raich would have been considered interstate commerce as that term would have been generally understood at the time of the Constitution's enactment? He selectively employs original intent when it gets the results he likes, and ignores it when, as in this case, it doesn't lead to a result he likes.

Well, technically Scalia never employs original intent:

"The theory of originalism treats a constitution like a statute, and gives it the meaning that its words were understood to bear at the time they were promulgated. You will sometimes hear it described as the theory of original intent. You will never hear me refer to original intent, because as I say I am first of all a textualist, and secondly an originalist. If you are a textualist, you don't care about the intent, and I don't care if the framers of the Constitution had some secret meaning in mind when they adopted its words. I take the words as they were promulgated to the people of the United States, and what is the fairly understood meaning of those words." (Source)

I'm not going to expend too much time defending an opinion I don't agree with, because I would have joined Justice Thomas' dissent in that case, which I think rests on much more solid originalist, and textualist footing. But I don't agree that Scalia's opinion is utterly ridiculous, and he provides a perfectly reasonable justification in his concurrence, which is far, far more convincing than the opinion of the court. It just isn't as convincing as Justice Thomas' dissent.

Roberts' endorsement of substantive due process, of the outcome of Griswold, and his support for "privacy" rights are troubling to any true judicial conservative.

One slight rejoinder I'd offer to that is that there is an originalist argument which argues that Griswold was correctly decided. To be clear, I do not buy into this idea, but there is a reasonable argument made that the ninth amendment was understood to permit the judiciary to enforce unenumerated rights, but only those rights which were widely understood to be natural and inviolable rights at the time of ratification. Under this rubric, marital privacy could be argued to have constituted a right in 1791, and therefore Griswold could have reached the right result. I do not buy into this, though, because I don't believe that the ninth amendment creates justiciable rights, and I feel that the nith amendment has a very different (and none-the-less important) purpose and function to that proposed by the advocates of unenumerated rights. I thought I'd add though that there is an argument - and a perfectly coherent, reasonable argument, at that - made that I'm wrong about this.

Its all well and fine to say that the court should protect the powerless but behaving as if it *obvious* who the powerless is is fool hardy.

The problem with the doctrine of "protect the little guy" is that it endorses the view that the court should pick its preferred victor and work the law until is can find a result in favor of that person.

Can you not see the utter corruption that this position brings?


As for this point about living/evolving constitutions. Can you honestly claim that's an accurate way to frame the debate? Again (and I'm getting repetitive here), I really like the way Professor Barnett framed the issue. Applying the constitution requires you both determine what it says and to determine how what it says applies to the situation at first. I believe he calls this interpretation versus construction.

In so doing he argues quite well I think that original meaning IS NOT necessarily strict constructionist.

It is in that latter case were you encounter mismatches between your jurisprudence and current events, but resolving that defect by no means implies you need or should abandon an attempt to first determine what the words meant when they were written.

I'm not a lawyer but am curious - can Loving be defended on originalist grounds?

I'm not a lawyer but am curious - can Loving be defended on originalist grounds?

I realy don't know much about Loving, I don't think I've ever even read it. My initial, gut reaction - and I don't mean to endorse this result - would be that a law that prohibited marriage between two people based on their race would indeed fail an equal protection challenge. In his Lawrence dissent, Scalia noted:

The objection is made, however, that the antimiscegenation laws invalidated in Loving v. Virginia, 388 U.S. 1, 8 (1967), similarly were applicable to whites and blacks alike, and only distinguished between the races insofar as the partner was concerned. In Loving, however, we correctly applied heightened scrutiny, rather than the usual rational-basis review, because the Virginia statute was “designed to maintain White Supremacy.” Id., at 6, 11. A racially discriminatory purpose is always sufficient to subject a law to strict scrutiny, even a facially neutral law that makes no mention of race.

(Lawrence v. Texas, 539 U.S. 558) (Opinion of Scalia, J., at 16)

Niner,

I have absolutely no problem applying the "plain meaning" of the Ninth Amendment in the federal context. If you're familiar with the "incorporation" controversy, then you can understand why one would object to applying the Ninth Amendment's "plain meaning" against states. Especially because the Ninth and Tenth Amendments were not rights per se, but were instead intended as a way to emphasize the limits of federal power.

Mark,

>It seems an exercise in futility to try and apply logic to Biden's thinking process. Yes, he does land a few reasonable and logical points from time to time (perhaps one out of twenty over the past 33 years), but it's entirely a haphazard function of catch as catch can. So you shouldn't feel too puzzled at all.<

Is that less than you can say about George W. Bush?

Matthew G,

It's been awhile since I've read Lawrence. I don't recall being shocked or offended. Maybe you can cite what you believe was hateful or bigoted. Thanks

Lawrence v. Texas
Sorry no pin-point citations

“The Texas statute undeniably seeks to further the belief of it’s citizens that certain forms of sexual behavior are ‘immoral and unacceptable,’ – the same interest furthered by criminal law against fornication, bigamy, adultery, adult incest, bestiality, and obscenity.”

“Today’s opinion is the product of a Court, which is the product of a law-profession culture, that has largely signed on to the so called homosexual agenda, by which I mean the agenda promoted by some homosexual activists directed at eliminating the moral opprobrium that has traditional attached to homosexual conduct”

“The Court views it as “discrimination” which is the function of our judgments to deter. So imbued is the Court with the law profession’s anti-anti-homosexual culture, that it is seeming unaware that the attitudes of that culture are not obviously ‘mainstream’; that in most states what the court calls ‘discriminations’ against those who engage in homosexual acts is perfectly legal”

Also in Romer v. Evans, 517 U.S. 620 (1996).

“In holding that homosexuality cannot be singled out for disfavorable treatment, the Court… places the prestige of this institution behind the proposition that opposition to homosexuality is as reprehensible as racial or religious bias.”

Randy, I'm still not getting it. What's hateful or bigoted in any of that?

In your first quote, Scalia is saying bans on homosexual sodomy are bans promoting majority sexual morality. That interest in sexual morality is the basis behind laws which prohibit incest, bestiality, et al. That is a legitimate point--if sexual morality is an illegitimate basis of law, then it follows that those laws will be imperiled.

The second quote you cite is a small portion of a larger point--that America's legal culture is quite distinct from American culture more broadly. His citing this fact should not be controversial.

Third citation is more of the same.

Once more, the fourth quotation you provide is, I think, something which is not controversial. The Court is saying, at least in the eyes of the Constitution, more or less, that discrimination on the basis of homosexuality is the same as religious or racial discrimination. That is, I think, a pretty unremarkable observation. Does pointing it out translate to bigotry?

I've read Lawrence several times. Each time other than the first is because people claim Scalia's bigotry is so evident. Each time I read it, I find no evidence of that proposition. Ditto with Romer.

Challenge,

I actually didn’t say anything about Scalia being a bigot, I just provided some quote that I thought were most relevant to the issue. I agree with you that none of those comments “prove” that Scalia is a bigot, they all have some (relatively) neutral explanation, but at the same time I do think they are quite suspect.

The first comment compares consensual homosexual intimacy with bestiality; certain religious fanatics might believe that these are in the same category, but I hardly think there is a “moral majority” that holds this type of archaic belief.

In the second quote Scalia gives credence to some sort of “homosexual agenda” conspiracy, whether or not a majority of people believe in something like this I hardly think that it is proper material for a judicial opinion.

I don’t feel like going through every point or deeply explaining why they would lead me to believe the man has an extremely unenlightened view of homosexuality (and is willing to give legal effect to an even more bigoted form) because I doubt I’m going to convince anyone. Perhaps one either reads the opinion and says to themselves, “that’s not something an unbiased person would say,” or they don’t. He certainly don’t say anything inconsistent with a moderately bigoted perspective (he does give lip service to the idea that he doesn’t hate gay people), and you can hardly expect any more explicit anti-gay statements. If you are willing to by the, “just giving effect to other people’s beliefs,” he didn’t say anything more bigoted then the court in Plessy.

Note also that, contrary to your reading, in the fourth (Romer) quotation Scalia is disagreeing that homosexuality should be treated with the same scrutiny as racial or religious bias. He accuses the court of placing them on the same level and finds the idea to be outrageous.

If someone would have said in 1955 that Griswold, which created an uncontroversial right to contraception within marriage (a right which was never in jeopardy), would lead to a right to abortion on demand and homosexual sodomy, I think that person would have been condemned much as Scalia has been for his comparisons to polygamy, bestiality, etc.

But they would have been right. When Court's create poorly thought-out sophistries to reach their desired outcomes, the legal principles they created ad-hoc persist and reappear, taking on a life of their own.

Re-read what I wrote, Randy.

The Court is saying[Romer majority opinion], at least in the eyes of the Constitution, more or less, that discrimination on the basis of homosexuality is the same as religious or racial discrimination. That is, I think, a pretty unremarkable observation. Does pointing it out translate to bigotry?

Never meant to sugarcoat it, Kelo is outrageous. This isn't the the first such case and Bush's Texas Rangers stadium deal is just as outrageous. In that case they even convinced the local government to pay for the "public use" that supposedly was being engaged via eminent domain. It doesn't seem to be those on the right so outraged about Kelo ever showed such outrage towards the other case(s).

Challenge, I encourge to you read Randy Barnett's excellent comment about Lawrence. The decision is founded in liberty and not the right to privacy. Many/most of the other morality laws you cite have at least plausible arguments about public interest that justify them. Texas admitted in Lawrence that the only reason for the statute was to reflect the majority's moral opinion about the behavior.

Randy's piece shows how this attitude could lead to tyrannical government, something it seems would be very inconsistent with those who founded this country.